Bealmer v. Hartford Fire Ins. Co.

• Decision Date: 13 March 1920
• Docket Number: No. 20751.,20751.
• Citation: 281 Mo. 495,220 S.W. 954
• Parties: BEALMER et al. v. HARTFORD FIRE INS. CO. OF HARTFORD, CONN.
• Court: Missouri Supreme Court

220 S.W. 954

281 Mo. 495

BEALMER et al. v. HARTFORD FIRE INS. CO. OF HARTFORD, CONN.

No. 20751.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

Action by George Bealmer and William Bealmer, partners doing business as Bealmer & Sons, against the Hartford Fire Insurance Company of Hartford, Conn. From a judgment for plaintiffs, defendant appeals. Appeal transferred to Court of Appeals.

This is a suit upon a fire insurance policy. The plaintiff recovered judgment below in the sum of $1,417.60. A motion for a new trial having proved unavailing, this appeal is taken. The essential facts are as follows:

Appellant insured the church building of the Baptist Church of Atlanta, Mo., against fire, in the sum of $1,500. W. J. Dearing was the "surveying agent" for appellant in Atlanta, and as such countersigned all policies issued by it in that city, including the one here in question. Appellant was duly authorized to transact the business of insurance in this state, and Dearing was a duly licensed agent. Thereafter the trustees of the church sold the building thus insured to plaintiffs, including in the sale the unexpired insurance, which was to be transferred to the purchasers. Later, and before the policy had expired by lapse of time, the building was totally destroyed by fire. The contract between plaintiffs and the trustees was never reduced to writing.

There was evidence that appellant's agent was informed, by plaintiffs, of their purchase of the building and unexpired insurance, and of the terms upon which it was made, very shortly after the purchase was made, and that he consented to the assignment of the insurance policy to plaintiffs, and agreed to attend to the details necessary or usual in such cases, to vest the title to the policy in Plaintiffs. The policy was at that time in the agent's possession. No written assignment of the policy to plaintiff's was ever made.

W. J. Dearing, testifying in behalf of defendant, stated that he represented the defendant as its agent at Atlanta; that his duties as such agent were to solicit insurance, take the application, and send it in to the company, whereupon, if approved, it would be returned to him and he would look it over, and, if conditions remained the same, would then collect the premium, countersign the policy, and deliver it to the assured; that he had solicited the insurance here involved, and had countersigned the policy here in question, after receiving the premium; that no part of the premium had ever been refunded to the insured, or to plaintiffs, nor had defendant ever offered to refund any part of it; and that shortly after the sale, and before the fire occurred, he was informed that the trustees had agreed to assign the insurance to plaintiffs. Dearing further testified that none of the trustees of the church said anything to him about assigning the policy, nor did any member of the building committee say anything to him about it, although the chairman of the board of trustees told him of the sale of the building to plaintiffs; that he was never requested by anybody to assign the policy of insurance, nor to have it assigned; that, though he had represented the company for 20 years, he had never assigned a policy of insurance.

The petition was sufficient in form. The answer admitted the issuance and delivery of the insurance policy, and the sale of the building, but denied the assignment of the policy, and denied that the defendant or its said agent had ever consented to the assignment. The reply was a general denial.

The assignments of error are that the court erred in refusing to direct a verdict for defendant as a matter of law; that instructions numbered 1, 2, and 4, given in behalf of plaintiffs, are erroneous; that instructions numbered 1 and 2, requested by defendant, were improperly refused; that the court erred in admitting incompetent evidence; that "the court, by rulings upon evidence and instructions, did so construe section 7047 of the Revised Statutes of Missouri of 1909 as to deny defendant equal protection of the law, and said section, so construed, violates the constitutional rights and guarantees of the defendant"; and that the court erred in overruling the motion for a new trial, on the ground, among others, of the alleged unconstitutionality of section 7047 supra. No question was made in the trial court as to the constitutionality of any other section of the statutes.

The plaintiffs below contended that the consent by defendant's agent, Dearing, to the transfer of the insurance policy, and his knowledge of the sale and its conditions, bound the defendant company as effectively as if the policy had in fact been assigned. The trial court, in effect, so instructed the jury. Defendant's instruction No. 2, which the court refused to give, was a declaration that section 7047, supra, was unconstitutional and void, because in conflict with the constitutional provisions hereinafter named. In the view we take of this matter, no further statement of the facts is necessary.

This appeal comes to this court because of the constitutional question alleged. to be involved.

Barger & Hicks, of Chicago, III., and Barker & Jones, of La Porte (Bates, Hicks & Folonie, of Chicago, Ill., of counsel), for appellant.

Dan R. Hughes and John R. Hughes, both of Macon, for respondents.

WILLIAMSON, (after stating the facts as above).

It is obvious, from the foregoing statement of facts, that if we have jurisdiction of this case it is because, and solely because, a constitutional question is thought to be involved. Neither party has questioned our jurisdiction, but the first question to be decided by any court in any case is whether or not it has jurisdiction in point of fact. It is as essential to the orderly administration of justice that we should decline to proceed in any case where jurisdiction is absent, as that we should unhesitatingly adjudicate when jurisdiction appears. We are thus confronted with the vital question: Is a constitutional question involved in this cause? No constitutional question was made by the pleadings. The first suggestion of a constitutional question appears in an objection to the introduction of certain evidence, and the objection then made, in plain terms, is that section 7047 of the Revised Statutes of Missouri of 1909 is unconstitutional and void, under subsection 26, section 53, article 4, of the Constitution of Missouri, and under section 1 of article 14 of the amendments to the federal Constitution, and also under article 2 of section 30 of the Constitution of Missouri. Subsection 26 of section 53 of article 4 of the Constitution of Missouri, forbids the passage of any law "granting to any corporation, association or individual any special or exclusive right, privilege or immunity, or to any corporation, association or individual the right to lay down a railroad track."`We assume that by reference to article 2 of section 30 of our Constitution, section 30 of article 2 is meant. That section and section 1 of the Fourteenth Amendment to the Constitution of the United States, are the familiar sections of those Constitutions relating to "due process of law."

Similar objections are made to the Introduction of other evidence from time to time "on constitutional grounds for the reasons heretofore stated." Upon the conclusion of the evidence appellant asked an instruction to the &Teat that that section, to wit, section 7047, supra, was void, because in conflict with the various constitutional provisions above named. This instruction was refused, and an exception was duly saved. Appellant also objected to each instruction given in behalf of respondents on the ground that each was "contrary to section 1 of article 14 of the amendments of the Constitution of the United States, and unconstitutional and void under the terms and conditions" of the various provisions above named of the Constitution of Missouri.

In its motion for a new trial, appellant assigned as one ground that "the court erred in failing to hold section 7047," supra, to be unconstitutional and void, because contrary to the various constitutional provisions above enumerated. This was the only reason, touching upon constitutional questions, assigned in that motion. The motion and of the objections above mentioned were overruled, and exceptions were duly saved.

Under the heading of "Argument," appellant in its brief states its understanding of plaintiff's position, quotes from section 7052 of the Revised Statutes of Missouri of. 1909, and states its contention on the constitutional questions claimed to be involved, in the following language:

"It was the contention of the plaintiffs in the trial court that by virtue of the statutes of Missouri, respecting agents of foreign insurance companies, that the effect of such statute was to make the agent, licensed to do business for such company, the agent of the insurance company in every particular so that he was, to all intents and purposes, the insurance company. The section (section 7052 of Missouri Revised Statutes of 1905) reads as follows: `Any person or persons in this state who shall * * * make or cause to be made, directly or indirectly, any contract of insurance for such company or association, shall be deemed to all intents and purposes an agent of such company or association' This section, if interpreted to mean that one who makes an insurance...